CAVALIER v. CATHOLIC UNIVERSITY OF AMERICA
Filing
85
MEMORANDUM OPINION AND ORDER: Upon consideration of Defendant's Motion for Summary Judgment, Dkt. 61, and Motion to Strike, Dkt. 68 it is hereby ORDERED that the Motion for Summary Judgment is GRANTED in part and DENIED in part, and that the Motion to Strike is DENIED as moot. See document for details. Signed by Judge Randolph D. Moss on 1/12/2021. (lcrdm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIN CAVALIER,
Plaintiff,
Civil Action No. 16-2009 (ROM)
v.
THE CATHOLIC UNIVERSITY OF
AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
In the August of 2012, Erin Cavalier began her freshman year of college at The Catholic
University of America (the "University"). 0kt. 1 at 4 (Comp!.
,r 8).
she was allegedly raped in her dormitory room. Id. at 1 (Comp!.
Less than four months later,
,r 2).
Cavalier immediately
notified the University. This case is about its response.
The parties cast that response in starkly different terms. Cavalier contends that it was
wholly lacking: the University "failed to interview key witnesses and collect key evidence,"
"failed to train the key decision-makers," failed to conduct a legitimate hearing, and "failed to
protect" her from her alleged rapist. 0kt. 72 at 9. It was a "campaign of indifference," id., a
process so "consistently re-victimiz[ing]" that it was "almost as bad as being raped" again. 0kt.
65-1 at 32 (Pl. 's Resp. SUMF ,r 211 ). The University sees things in a different light. It contends
that its investigation was thorough and thoughtful; its hearing timely and fair; and its
decisionmakers trained and informed. 0kt. 61 at 5-6. In the University's view, it did "more, not
less, than required." 0kt. 73 at 5.
The parties' dueling accounts are now before this Court on the University's motion for
summary judgment on Cavalier's two remaining claims: the first, for unlawful discrimination on
the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 (a) ("Title IX"), and the second, for negligent infliction of emotional distress under D.C.
tort law. 0kt. 61 at 34-35, 52. As explained below, the Court concludes that a reasonable jury
could find that the University acted in a clearly unreasonable manner in one respect: when
investigating Cavalier's complaint, it failed adequately to consider her incapacitation and,
consequently, erroneously delayed setting a hearing to address her complaint until August 2013.
Under the governing Supreme Court test, however, it is not enough that the University did
something wrong; its actions must have themselves subjected Cavalier to discrimination, and the
parties have yet to address whether the University's delay in setting a hearing caused her to
suffer the type of discrimination prohibited by Title IX. The Court, accordingly, concludes that
the University's motion for summary judgment on Cavalier's Title IX claim is unavailing, but
leaves open the possibility that the University may yet prevail on one or more of the defenses it
has asserted. 1 Finally, the Court concludes that the University is entitled to summary judgment
on Plaintiff's claim for negligent infliction of emotional distress.
The Court will, accordingly GRANT in part and DENY in part the University's motion
for summary judgment, 0kt. 61.
1
Among other issues raised by this framing of Cavalier's remaining claim, the statute of
limitations defense that the University previously raised-and that the Court previously rejected
on a continuing violation theory-arguably reemerges.
2
I. BACKGROUND
"On a motion for summary judgment, [the Court] view[s] the facts in the light most
favorable to the nonmoving party." Chambers v. US. Dep 't of Interior, 568 F .3d 998, 1000
(D.C. Cir. 2009). Viewed through that lens, the relevant facts are as follows:
A.
The Alleged Rape and the Initial Response
Late in the evening on December 14, 2012, Erin Cavalier and John Doe, then both first-
semester freshmen at The Catholic University of America, met at a party in Flather Hall, a
dormitory on the University campus. Dkt. 1 at 10 (Compl.
~
37). Earlier in the evening, each
had been drinking heavily: Cavalier had consumed "two or three cups of wine[,] two or three
shots of tequila, [and] ... a mixed drink of Sprite and vodka with about three shots of vodka in
it," Dkt. 78 at 23 (Cavalier); Doe had consumed "three-quarters of a handle of Captain Morgan
and ... about four or five" beers, id at 26 (Doe). As the party dissipated, Cavalier asked Doe to
walk her home. Dkt. 72-2 at 3; Dkt. 61 at 11; Dkt. 1 at 11 (Compl.
~
40). Doe obliged, Dkt. 72-
2 at 3, and upon returning to Cavalier's dormitory room, Doe and Cavalier engaged in sexual
intercourse. 0kt. 61 at 6; 0kt. 45-3 at 3 (Def.'s SUMF ~ 11). Doe then left. Dkt. 45-3 at 3
(Def.'s SUMF ~ 11).
A short time later, another student found Cavalier partially unclothed on the floor of the
dormitory bathroom. 0kt. 65-1 at 2-3 (Pl.'s Resp. SUMF ~ 3); see also Dkt. 64-5 at 5. Cavalier
asked the other student to get the Resident Assistant ("RA"). 0kt. 65-1 at 2-3 (Pl.'s Resp.
SUMF ~ 3); see also Dkt. 64-5 at 5. The RA arrived and accompanied Cavalier to her room,
where she cried and told a friend over the phone that she thought "she 'may have been raped.'"
Dkt. 65-1 at 2-3 (Pl.'s Resp. SUMF ~ 3); see also Dkt. 64-6 at 2. The RA then reported
Cavalier's allegations to the University's Area Coordinator, Nicole Giglia. Dkt. 65-1 at 2-3
(Pl.'s Resp. SUMF ~ 3); see also Dkt. 64-6 at 2.
3
That same morning, shortly after 2:00 a.m., Giglia and Lieutenant Marvin Dicks of the
University's Department of Public Safety ("DPS") arrived at Cavalier's dormitory in response to
her reported assault. 0kt. 45-3 at 1-2 (Def.'s SUMF ,r,r 1, 4); 0kt. 65-1 at 2-3 (Pl.'s Resp.
SUMF ,r,r 1, 4); see also 0kt. 45-5 at 2. Lieutenant Dicks took Cavalier's statement and Giglia
told Cavalier that she would be able to see a Sexual Assault Nurse Examiner ("SANE nurse") at
Washington Hospital Center. 0kt. 45-3 at 2 (Def.'s SUMF ,r 4); 0kt. 65-1 at 3 (Pl.'s Resp.
SUMF ,r 4); see also 0kt. 45-5 at 4; 0kt. 45-6 at 2. Before the Emergency Medical Services
("EMS") unit arrived to transport Cavalier to the hospital, Officer A.O. Moore of the
Metropolitan Police Department ("MPD") arrived at the dormitory. Dkt. 45-6 at 2. Lieutenant
Dicks "briefed [Moore] on the situa~ion," after which, according to Giglia, Moore "rolled his
eyes and said, 'I'm not touching this, I'm calling the Sex Crime Unit."' Id. Before paramedics
were able to transport Cavalier to the hospital for evaluation, Officer Moore questioned Cavalier
in her dormitory room, with Lieutenant Dicks present. Id. Giglia overheard Moore asking
Cavalier "do you want to see the SANE nurse because you believe you were sexually assaulted
or do you just want to go because you think you could get pregnant." Id.
According to the report that Lieutenant Dicks later prepared, Cavalier told him that she
had been drinking alcohol on campus earlier that night and eventually returned to her dormitory
with John Doe. 0kt. 45-5 at 4. Cavalier further indicated that she did "not remember how she
got [back to her dormitory]," "was unsure of whether [John Doe] was signed in [to her
dormitory] as a guest," and did not "remember the time this incident occurred." Id. Cavalier
also told Lieutenant Dicks that after she and Doe arrived at her dorm room, they "started
hugging," at which point she "consented [to] having sex only with a condom" and "offered" D
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